Prisons for Profit: Do the Social and Political Problems Have a Legal Solution?

By Antonuccio, Rachel Christine Bailie | Journal of Corporation Law, Winter 2008 | Go to article overview

Prisons for Profit: Do the Social and Political Problems Have a Legal Solution?


Antonuccio, Rachel Christine Bailie, Journal of Corporation Law


 I. INTRODUCTION TO THE PRIVATE PRISON INDUSTRY AND THE NONDELEGATION
    DOCTRINE
    A. The Advantages of Private Prisons
    B. The Disadvantages of Private Prisons
    C. The History of Private Prisons in the United States
    D. The Nondelegation Doctrine
II. ANALYSIS
    A. Private Prisons Are Outside the Scope of the Nondelegation
       Doctrine
     1. Supreme Court Authority Used to Challenge the Constitutionality
        of Private Prisons is Inapplicable
     2. Circuit Court Authority Used to Challenge the Constitutionality
        of Private Prisons is Inapplicable
     B. Is the Nondelegation Doctrine Obsolete?
III. RECOMMENDATIONS
     A. The Social Arguments Against Private Prisons
     B. The Political Argument Against Private Prisons
     C. Simplifying the Issue
     D. Specific Solutions
IV. CONCLUSION

I. INTRODUCTION TO THE PRIVATE PRISON INDUSTRY AND THE NONDELEGATION DOCTRINE

Despite the fact that property (1) and violent (2) crime rates have declined since 1973, in the years between 1988 and 1997, the U.S. prison population increased drastically. (3) The factors contributing to the increase in the prison population included: a number of legislative enactments toughening drug and weapon penalties (4); enactments encouraging mandatory minimum sentencing; preventive detention; reduced use of parole; and increased penalties for habitual offenders. (5) During this same time, state and federal legislators were unreceptive to legislation involving new taxes and construction bonds, (6) the most utilized methods of financing state and local prisons. (7) In a little less than a decade, the U.S. prison population nearly doubled, rising from 627,600 inmates in 1988 to 1,244,554 inmates in 1997.8 In 1997, the federal prison system reported functioning at 19% over capacity, (9) and state prisons reported functioning at 24% over capacity. (10) These facts, combined with a 1992 executive order issued by President George Herbert Walker Bush requiring all federal agencies to encourage state and local governments to utilize private prisons, (11) led governments to look to private prisons (12) as a necessary supplement to public ones. (13)

A. The Advantages of Private Prisons

At first glance, private prisons seem to have a number of advantages over public prisons. Private prison advocates claim that private prisons save taxpayers money. (14) Because they are subject to less bureaucracy than public prisons, private prison corporations claim they can build and staff their prisons more quickly and less expensively than can public prisons. (15) While state or federal governments take at least two years to build a prison, private prison corporations claim they can build a prison in less than 18 months. (16) Private prisons have the advantage of being able to test new incarceration philosophies without the hindrance of the lengthy approval procedures that bind public prisons. (17) They also have the luxury of strategically locating themselves in states that provide the greatest economic benefit, giving governments the option to transfer prisoners to states in which prisoners can be held at the least expense. (18) Additionally, as a result of privatization, governments face potentially less liability in suits brought by prisoners and prison staff. (19)

B. The Disadvantages of Private Prisons

While private prisons have some advantages over public prisons, they pose a number of social and logistical disadvantages as well. Opponents of prison privatization question the implications of the potential to profit from incarceration (20) and the resulting disincentive to curb the influx of new inmates. (21) On May 3, 2006, Corrections Corporation of America (stock symbol CXW), the largest private prison corporation in the United States, posted a $21.3 million first quarter profit and raised its full-year profit outlook by ten cents per share. (22) "We've never seen the wind at our back like it is today," Chief Executive John Ferguson said that day in a shareholder conference call. …

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Prisons for Profit: Do the Social and Political Problems Have a Legal Solution?
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